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R (Couves) v Gravesham Borough Council [2015] EWHC

DATE: 02 Mar 2015

This was an application for judicial review of Gravesham Borough Council’s decision to grant planning permission for a major mixed use development in the centre of Gravesend.  The judgment contains a useful discussion of the extent to which there can be overlapping powers of delegation to a planning committee and a planning officer, and how this can affect the need for an application to be returned to the planning committee before permission is granted. 

The development, by Edinburgh House Estates Limited, proposed over 300 houses, a hotel, 12000 sqm of retail floorspace, restaurants and office space in the area known as the Heritage Quarter in Gravesend.  The formal decision notices granting permission were issued by planning officers on 1 May 2014, following a resolution by the Regulatory Board that “the application be permitted subject to planning conditions … and negotiation of the s.106 agreement”.

In the High Court, the Claimant Urban Gravesham argued that the terms of the s.106 agreement negotiated by planning officers were materially different from those which the Regulatory Board had been led to expect, and that the application should have been returned to the Regulatory Board for approval of the s.106 before permission was granted. 

These arguments were rejected by Ouseley J.  Under the terms of Gravesham’s Constitution, the judge was satisfied that both the Regulatory Board and the planning officer had had jurisdiction to determine the application.  When resolving in principle that the application should be approved, the Regulatory Board had trusted planning officers to negotiate the best s106 agreement which could be done.  Members of the Regulatory Board had wide powers to require the application to be brought before them again, but these had not been exercised and not one Council member had expressed concern about the procedure adopted by the planning officer.   In any event, while the final s.106 agreement did not deliver everything which the Council wanted, the officer’s report to the Regulatory Board had made it clear that there was a gap between the parties, and that viability would play a major part in what would ultimately be agreed.  There was no significant change between what was agreed and what members could have expected.  Other changes in circumstance since the Regulatory Board’s decision could not have affected the outcome.

The application was therefore dismissed.

Paul Brown QC acted for the Interested Party, Edinburgh House Estates Ltd.

A copy of the judgment can be found here.